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THE TRIAL OF AARON BURR 



Frontispiece 



CHIEF JUSTICE MARSHALL 



THE TRIAL 
OF AARON BURR 



BY 

JOSEPH P. BRADY 

Clerk of the United States District Court for the 
Eastern District of Virginia 




NEW YORK 

THE NEALE PUBLISHING COMPANY 

1913 



'7- 



Copyright, 1913, by 
The Neale Publishing Company 



//,^ 



A 15 54 056 



PEEFACE 

Among the records of the United States 
Courts at Eichmond, Virginia, are the original 
papers in the case of the ''United States versus 
Aaron Burr, Indictment for Treason." The 
tawny fingers of time have dealt gently with 
these papers, and although more than a century 
old they are still in a good state of preserva- 
tion. 

The story of the trial of Aaron Burr has often 
been written, and there is little new that can 
be added ; but these old manuscripts and official 
documents, so historic in their character, should 
at least in some form survive the ravages of 
time. It is with this thought in mind, and with 
the hope that possibly some fact not already 
recorded in history might be disclosed by the 
original papers, that this brief history is writ- 
ten. 



LIST OF ILLUSTRATIONS 

Chief Justice Marshall Frontispiece >/ 

FACING 

PAGE 

Warrant for arrest of Burr 20 - 

Affidavit at Burr for subpoena duces tecum for President 

Jefferson 40 

Subpoena duces tecum for President Jefferson . . . . 50 ^ 

Subpoena duces tecum for President Jefferson (continued) 50 ■ 

Findings of the Grand and Petit Juries 70 ^ 



THE TRIAL OF AARON 
BURR 

On the evening of the 26th of March, 1807, 
Aaron Burr, attended by a military guard of 
nine men, under the command of Major Nicholas 
Perkins, who had been largely instrumental in 
his arrest, arrived in the City of Eichmond, Vir- 
ginia. Immediately upon his arrival he was 
lodged in the Eagle Tavern, the leading hos- 
telry of its time in that city, where he re- 
mained confined until March 30th, when he was 
delivered to the civil authorities by virtue of a 
warrant issued by Chief Justice Marshall. 

The preliminary examination of Burr was 
private. The warrant was served on him in 
his apartment by Major Scott, the Marshal of 
the Virginia District, who, after informing 
him of the object of his visit, conducted him 
to another room, where he was brought be- 
fore the Chief Justice. The few persons pres- 
ent were Caesar A. Rodney, Attorney-General 

9 



10 THE TRIAL OF AAEON BURR 

of the United States; George Hay, the United 
States Attorney for the Virginia District; Ed- 
mund Randolph and John Wickham, counsel for 
the prisoner; the United States Marshal and 
his two deputies ; and a few friends of the coun- 
sel for Burr. 

The evidence introduced on behalf of the 
prosecution was a copy of the record in the case 
of Bollman and Swartout in the Supreme Court 
of the United States, which contained the de- 
positions of General Eaton and General Wilk- 
inson directly connecting Burr with the offense 
charged against him. No verbal testimony was 
heard, except that of Major Perkins, who told 
of the arrest of the prisoner and of his convey- 
ance of him to Richmond. 

At the conclusion of the evidence a motion in 
writing was submitted by Mr. Hay for the com- 
mitment of the accused on two charges, viz : — 

First. For a high misdeameanor, in setting 
on foot, within the United States, a military ex- 
pedition against the dominions of the King of 
Spain, a foreign prince, with whom the United 
States, at the time of the offense, were, and 
still are, at peace. 



THE TRIAL OF AAEON BURR 11 

Second. For treason in assembling an armed 
force, with a design to seize the city of New 
Orleans, to revolutionize the territory attached 
to it, and to separate the western from the At- 
lantic states. 

It soon developed that this motion would 
cause considerable discussion, and as previously 
agreed upon by counsel, with the approval of 
the Chief Justice, the further hearing of the 
case was adjourned to the House of Delegates 
in the Capitol, where all subsequent proceedings 
were had. 

The argument on the motion lasted two days. 
It was opened by Mr. Hay for the United 
States. He was followed by Mr. Wickham and 
Mr. Randolph for the accused. Colonel Burr 
spoke about ten minutes in his own behalf, and 
Mr. Rodney, the Attorney-General of the United 
States, closed the discussion. 

The third day of the trial, the Chief Justice 
delivered his written opinion. ' ' On an applica- 
tion of this kind," says he, ''I certainly should 
not require that proof which would be neces- 
sary to convict the person to be committed on 
a trial in chief; nor should I even require that 



12 THE TRIAL OF AAEON BURR 

whicli should absolutely convince my own mind 
of the guilt of the accused; but I ought to re- 
quire, and I should require, that probable cause 
be shown; and I understand probable cause to 
be a case made out by proof furnishing good 
reason to believe that the crime alleged has 
been committed by the person charged with hav- 
ing committed it. ' ' The Chief Justice then re- 
views the testimony of General Eaton and Gen- 
eral Wilkinson in the Swartout and Bollman 
case to show how far these charges are sup- 
ported by probable cause, and in conclusion de- 
livers himself as follows: ''I shall not there- 
fore insert in the commitment the charge of 
high treason, since it will be entirely in the 
power of the Attorney-General to prefer an in- 
dictment against the prisoner for high treason 
should he be furnished with the necessary testi- 
mony. ' ' 

Burr was now called upon to give bond, and 
the amount to be required of him gave rise to 
much discussion. The Chief Justice stated, 
"that he wished it to be neither too large to 
amount to oppression, nor too small to defeat 
the objects of justice." It had occurred to 



THE TEIAL OF AAEON BURR 13 

him that the sum of ten thousand dollars would 
perhaps avoid both these extremes. Mr. Hay 
earnestly insisted upon a larger amount, but the 
amount was fixed at ten thousand. Burr was 
then bailed for his appearance at the next term 
of the Circuit Court of the United States to con- 
vene at Richmond on the 22d of May next, to 
answer the charge of high misdemeanor. 

Aaron Burr was now at liberty. President 
Jefferson was enraged at the result of the first 
trial. The feeling between the partisans of the 
Administration and the Federalists, to which 
political party Marshall belonged, was rampant. 
The friends of Jefferson charged Marshall with 
having permitted his political bias and personal 
dislike of the President to warp his judgment 
in favor of Burr throughout the trial, and Jeff- 
erson in one of his letters to Senator Giles, 
written a few days after Burr's first examina- 
tion at Richmond, refers to the tricks of the 
judges in hastening the trial so as to clear Burr. 
It was evident that Jefferson was to be the real 
prosecutor of Burr, and had made up his mind 
to convict him at whatever cost. 

The 22d of May, 1807, the United States Cir- 



14 THE TRIAL OF AAEON BURR 

cuit Court for the Virginia District convened 
in the House of Delegates in the City of Rich- 
mond, Virginia, with Chief Justice Marshall 
and Cryus Griffin, District Judge, on the bench. 
Long before the hour the Court was to meet 
the hall and the entrances to the Capitol were 
thronged with people. Not a few of them were 
witnesses and persons summoned as grand 
jurors, while others were attracted by the 
notoriety of the trial. There could be seen 
John Randolph, of Roanoke, "the brilliant, ec- 
centric leader of the Quids, ' ' in the House, and 
afterwards United States Senator from Vir- 
ginia; Andrew Jackson, who was loud in his 
denunciation of Jefferson and his administra- 
tion for ''persecuting his innocent friend"; 
Winfield Scott, then a young lawyer just ad- 
mitted to practice; General Eaton, with a 
grudge against the Government for its failure 
to pay his claim for services and cash advanced 
while consul in Barbary, and with whom Burr 
had talked with great freedom about his plans ; 
Commodore Truxton, another disgruntled officer 
of the Government in whom Burr had confided ; 
Col. Morgan, a valiant old campaigner from the 



THE TEIAL OF AAEON BURE 15 

West, and his two stalwart sons, whose services 
Burr tried to enlist, but whom Jefferson 
credited with giving him the first intimation of 
Burr's designs; John Graham, who had 
been sent out by the Administration to the 
Mississippi territory as its confidential agent 
to circumvent Burr and expose the con- 
spiracy; Colonel Dupiester, one of the lead- 
ing spirits in the plot and Burr's trusted 
friend and ally; Jonathan Dayton, formerly 
speaker of the House of Eepresentatives 
and Ex-Senator from the State of New 
Jersey, and John Smith, lately a Senator 
from Ohio, both friends of Burr and prominent 
in the conspiracy with him ; Dr. Erick Bollman, 
an educated German, who had recently dis- 
tinguished himself by a gallant but unsuccess- 
ful attempt to rescue Lafayette from prison in 
the castle of Olmutz, Austria, and in whom Burr 
had confided. Jefferson expected Bollman to 
give testimony that might criminate himself, 
and during the trial sent through District At- 
torney Hay a pardon for him, which Bollman 
indignantly refused to accept. And thither also 
came Governor Alston of South Carolina, and 



16 THE TRIAL OF AARON BURR 

bis wife, the beautiful and accomplisbed Tbeo- 
dosia, the only daughter of Aaron Burr; who 
bad fled to his side the moment she had heard 
of bis arrest. 

The court was formally opened at half past 
twelve o'clock, and probably there never was 
such an array of learning and legal attainments 
as was present on that occasion. Foremost and 
overshadowing all was John Marshall, the Chief 
Justice. ''* Gentlemen of the profession," said 
Parton, "who witnessed the trial, who saw the 
effective dignity with which the judge presided 
over the court, who heard him read those opin- 
ions, so elaborate and right, though necessarily 
prepared on the spur of the moment, regarded 
it as the finest display of judicial skill and 
judicial rectitude which they had ever beheld." 

Seated at the bar and appearing in behalf of 
the United States were Colonel George Hay, 
William Wirt and Alexander MacRae. 

Colonel Hay was a son-in-law of James Mon- 
roe, who was afterwards President of the 
United States. He was a lawyer of great in- 
dustry and much ability, and bore the laboring 
oar in the trial. He Avas a zealous partisan of 



THE TRIAL OF AAEON BURR 17 

Jefferson, and was assisted in the prosecution 
by almost daily communications from him. 
Later he was appointed United States judge for 
the Virginia district. Mr. Wirt was present at 
the personal request of President Jefferson. 
He was the most eloquent and accomplished ad- 
vocate then at the Richmond bar. There was 
no one whose rising to speak '*so instantan- 
eously hushed the spectators to silence." ''A 
handsome, fortunate, brilliant, high-minded man 
was William Wirt," says Parton, "the toil of 
whose life it was to achieve those solid attain- 
ments which alone make brilliancy of utterance 
endurable in a court of justice." Mr. MacRae, 
the third attorney for the government, was then 
Lieutenant-Governor of Virginia, and while less 
able than his two colleagues, was a lawyer of 
"respectable ability and a sharp tongue." 

On the side of the defense were the greatest 
lawyers of the time. The best known of them 
was perhaps Edmund Randolph. Mr. Ran- 
dolph had been a delegate to the Continental 
Congress and to the Philadelphia Constitu- 
tional Convention, Attorney-General and Gov- 
ernor of Virginia, and Attorney-General and 



18 THE TEIAL OF AAEON BURR 

Secretary of State under Washington. He was 
a man of great experience and learning. As- 
sociated with him from the day of Burr's ar- 
rival in Richmond was John Wickham, grand- 
father of the late General W. C. Wickham and 
great-grandfather of Hon. Henry T. Wickham, 
an eminent member of the present bar of Vir- 
ginia. Mr. Wickham was regarded by many 
as the ablest lawyer at the Virginia bar. ''The 
qualities," says Mr. William Wirt in the British 
Spy> "by which Mr. Wickham strikes the multi- 
tude are his ingenuity and his wit. But those 
who look more closely into the anatomy of his 
mind, disclose many properties of much higher 
dignity and importance. This gentleman, in 
my opinion, unites in himself a greater diversity 
of talents and acquirements than any other at 
the bar in Virginia. ' ' Another great lawyer of 
counsel for Burr, and probably the greatest one 
of his day, was Luther Martin of Maryland. 
He and Burr had formed a friendship about two 
years before in Washington, when Justice 
Chase of the Supreme Court of the United 
States was impeached by the House of Repre- 
sentatives and tried by the Senate for abuse of 



THE TRIAL OF AARON BURR 19 

his office in certain political trials. Burr was 
then Vice-President of the United States, and 
presided over the Senate in that celebrated 
proceeding, says a contemporary, "with the 
dignity and impartiality of an angel, but with 
the rigor of a devil." Martin was the leading 
counsel for Justice Chase, and greatly distin- 
guished himself. Conspicuous also was Ben- 
jamin Botts, father of the distinguished John 
Minor Botts, who although the youngest man on 
the side of the defense, had already become 
eminent in his profession. 

The other counsel for Burr w^ere Charles Lee, 
an Ex-Attorney-General of the United States, 
and a lawyer of much learning; ''Jack" Baker, 
who was more of a "good fellow" than lawyer; 
and Washington Irving, then attracting some 
attention in the field of letters, who to use his 
own words, "went to Richmond on an informal 
retainer from one of the friends of Col. Burr," 
although, as he said, "his client had little belief 
in his legal erudition, and did not look for any 
approach to a professional debut, but thought 
he might in some way or other be of service 
with his pen." 



20 THE TRIAL OF AAEON BURR 

But of the defense facile princeps was Burr 
himself. He was keenly alive to every proceed- 
ing, and while the burden fell upon others, no 
move was made, or point conceded, without his 
sanction. Mr. Robertson, the reporter of the 
trial, says: ''Among these stood Aaron Burr, 
proudly pre-eminent in point of intelligence to 
his brethern of the bar, who had been vice-presi- 
dent of the United States, and now accused of 
the highest and darkest crime in the criminal 
code. Standing before the Supreme tribunal 
of his country, and with the eyes of the nation 
upon him, he was, in the opinion of many, al- 
ready condemned. He had the talent and tact, 
and the resources of the Government to contend 
against, and every faculty of his mind was ex- 
erted in his own defense. The magnitude of 
the charge, the number of persons involved, the 
former high standing and extraordinary for- 
tunes of the accused, had excited an interest in 
the community such as never before had been 
known." 

The Marshal had summoned for service on 
the grand jury the most intelligent and repre- 






WARRANT FOR ARREST OF BURR 
Facing p, 20 



THE TRIAL OF AARON BURR 21 

sentative citizens of the Commonwealtli. 
Prominent among tliem was William B. Giles. 
He had served in both branches of the Legisla- 
ture of Virginia ; had been Governor of the State 
of Virginia; and representative and senator 
in the Congress of the United States. Senator 
Giles was a partisan of Jefferson, a mem- 
ber of what John Randolph called "the Presi- 
dent's back-stair cabinet." He was the leader 
of the republicans in the Senate, and had been 
foremost in the assaults on the "last stronghold 
of Federalism — the Judiciary." 

When Senator Giles was called on the voir 
dire he was challenged personally by Burr. 
Burr claimed the same right of challenging 
grand jurors for favor that he had of challeng- 
ing petit jurors, and was sustained in his posi- 
tion by the Chief Justice. His objection to Giles 
was that, on occasions in the Senate, he had pro- 
nounced his opinion on certain documents sent 
to that body by President Jefferson attributing 
to Burr treasonable designs, and upon such in- 
formation advocating the suspension of the writ 
of habeas corpus. He stated that he could pro- 



22 THE TRIAL OF AARON BURR 

duce evidence, if necessary, of public utterances 
of Senator Giles confirming tliese views. Sena- 
tor Giles was stricken from the panel. 

Another former United States Senator, and 
afterwards Governor of Virginia, summoned as 
a grand juror, was Wilson Gary Nicholas. He 
was a personal enemy of Burr, and when his 
name was called Burr challenged him. Colonel 
Nicholas had served three years in the Senate 
when Burr presided over it, and had taken a 
very decided part in favor of the election of his 
successor. He had freely expressed his suspi- 
cions, both in correspondence and publicly, of 
Colonel Burr's probable objects in the west. 
He was rejected. 

Some of the other distinguished citizens of 
Virginia summoned by the Marshal, and who 
served on the grand jury, were Littleton Waller 
Tazewell and James Pleasants, both afterwards 
United States Senators and Governors of Vir- 
ginia ; Joseph C. Cabell, one of the founders with 
Jefferson of the University of Virginia; Wil- 
liam Daniel, father of the late Judge William 
Daniel of the Court of Appeals of Virginia, and 
grandfather of John Warwick Daniel, the la- 



THE TRIAL OF AARON BURR 23 

mented senator from Virginia; and Colonel 
James Barbour, afterwards Governor of Vir- 
ginia, United States Senator, Secretary of War 
Tinder John Quincy Adams, and Minister to 
England. 

The general belief in the guilt of the accused 
was manifested at the very beginning of the 
trial. The proclamations and the special mes- 
sages of President Jefferson to Congress, and 
the depositions of Generals Eaton and Wilkin- 
son had had their effect on the public mind. A 
number of citizens summoned for service on the 
grand jury frankly admitted they had prejudged 
the case, and in consequence of such disqualifi- 
cations and excuses the original panel was re- 
duced to fourteen. 

The court, being now without a legal grand 
jury in attendance, directed the Marshal to sum- 
mon from the bystanders two additional per- 
sons. The Marshal summoned and returned 
John Randolph and William Foushee. Mr. 
Randolph was named as foreman, but upon be- 
ing asked to take the oath, requested to be ex- 
cused from serving. He had formed an opinion 
concerning the nature and tendency of certain 



24 THE TRIAL OF AARON BURR 

transactions imputed to Mr. Burr. He had a 
strong prepossession, but thought he could di- 
vest himself of it upon evidence. Mr. Burr ob- 
served that he was afraid they would be unable 
to find any man without this prepossession. 
''The rule is," said the Chief Justice, "that a 
man must not only have formed, but declared an 
opinion, in order to exclude him from serving 
on the jury." Mr. Randolph replied that he 
had no recollection of having declared one, and 
he was thereupon sworn as foreman. 

Dr. Foushee when called to be sworn was 
found to be disqualified, and was permitted to 
withdraw. Colonel James Barbour was called 
in his stead and accepted. 

The selection of the grand jury having been 
completed, the grand jury was duly sworn by 
the clerk. It was composed of the following 
citizens : 

John Randolph, Foreman, Joseph Eggleston, 
Joseph C. Cabell, Littleton W. Tazewell, Robert 
Taylor, James Pleasants, John Brockefibrough, 
William Daniel, James M. Garnett, John Mer- 
cer, Edward Pegram, Munford Beverly, John 



THE TRIAL OF AAEON BURR 25 

Ambler, Thomas Harrison, Alexander Sliep- 
hard and James Barbour. 

The Chief Justice promptly delivered an ap- 
propriate charge to the grand jury. He dwelt 
more particularly upon the definition and na- 
ture of treason, and the testimony requisite to 
prove it. He said in part: ''To you by the 
Constitution and laws of our country is confided 
the important right of accusing those whose of- 
fenses shall have rendered them subject to 
punishment under the laws of the United States. 
It is on you that the fundamental principles on 
which the stability of our political institutions 
and the safety of individuals most greatly de- 
pend. For to little purpose would laws be 
formed to protect the innocent of the body 
politic from crimes of the worst nature if a mis- 
placed nonentity should control the execution of 
them. Juries, gentlemen, as well as judges, 
should be superior to every temptation, which 
hope, fear or compassion, may suggest; who will 
allow no influence to balance their love of jus- 
tice; who will follow no guide but the laws of 
their country. 



26 THE TEIAL OF AAEON BUER 

''In outlining to you, gentlemen of the jury, 
those offenses which are cognizable in the court, 
and which may scarcely be noticed by you, the 
first on the calendar, as w^ell as the highest 
known atrocity, is treason against the United 
States. With a jealousy peculiar to themselves 
the American people have withdrawn the sub- 
ject from the power of their legislature, and 
have declared in their Constitution that ' treason 
against the United States shall consist only in 
levying war against them, or in adhering to 
their enemies, giving them aid and comfort.' " 

After the grand jury had retired Colonel 
Burr addressed the court on the propriety of 
specially instructing them in regard to the ad- 
missibility of certain evidence, which he stated 
would be laid before the grand jury by the at- 
torney for the United States. Mr. Hay opposed i 
this application. He said he could never agree ' 
to it, and he trusted the court also would never f 
sanction such a suggestion; that Colonel Burr* 
stood before the court on the same footing as 
any other citizen, and he hoped the court would 
not distinguish between his case and that of 
any other. The question was postponed for 



THE TRIAL OF AAEON BURR 27 

further discussion. The court then adjourned 
to the following morning. 

The court met the next day and the grand 
jury also appeared. It became apparent that 
nothing effectual could be done until the arrival 
of General Wilkinson, the most important wit- 
ness for the Government. The grand jury were 
therefore adjourned from day to day until he 
put in his appearance. 

Meanwhile Mr. Hay had moved to commit 
Burr on a charge of high treason against the 
United States. On his preliminary examina- 
tion he was bailed on the charge of mis- 
demeanor, but said Mr. Hay "there was no evi- 
dence of an overt act. The evidence is different 
now." 

This motion was discussed at length through- 
out the day, and provoked one of the most elo- 
quent debates of the whole trial and revealed 
the political passions of the day. Mr. Botts 
"begged leave to make a few remarks on this 
extraordinary application, and the pernicious 
effects such an extraordinary measure, if gen- 
erally practised, would inevitably produce. 
The organ particularly appropriated for the 



28 THE TRIAL OF AARON BURR 

consideration of the evidence wliicli the motion 
calls for, is the grand jury; and the motion is 
to divest the grand jury of the office, which the 
Constitution and laws have appropriated to 
to them, and to devolve it upon the court. The 
grand juror's oath is to inquire into all crimes 
and misdemeanors committed within the dis- 
trict of the State of which they are freeholders. 
Their office is to perform that which the court 
is now called upon to perform. To them be- 
longs the exclusive duty of inquiring and exam- 
ining into all species of evidence, which may 
lead to a conviction of the crimes of which 
Colonel Burr is now charged; but there is a 
great objection to the exercise of this examining 
and committing power by a high law officer, 
who is to preside upon the trial, when the grand 
jury, the appropriate tribunal, is in session." 
After Mr. Botts had taken his seat, Mr. Hay 
in response to an inquiry by the Chief Justice, 
as to whether the counsel for the prosecution 
intended to open the case more fully, stated, 
' ' that he had not intended to open it more fully ; 
he did not himself entertain the least doubt, that 
if there was sufficient proof produced to justify 



THE TRIAL OF AARON BURR 29 

the commitment of Colonel Burr, the court had 
completely the right to commit him." 

Mr. Wickham complained because the gentle- 
men on the other side had not given them notice 
of their intended motion. ''We come into this 
discussion completely off our guard, completely 
unprepared." "The fact is this," replied Mr. 
Hay, "Mr. Wilkinson is known to be a material 
witness in this prosecution; his arrival in Vir- 
ginia, might be announced in this city, before 
he himself reached it. I do not intend to say 
what effect it might produce upon Colonel 
Burr's mind; but certainly Colonel Burr would 
be able to effect his escape, merely upon paying 
the recognizance of his present bail. My only 
object then was to keep his person safe, until we 
could have investigated the charge of treason; 
and I really did not know but that if Colonel 
Burr had been previously apprised of my mo- 
tion he might have attempted to avoid it. But 
I did not promise to make the communication 
to the opposite counsel, because it might have 
defeated the very end for which it was in- 
tended." 

Mr. Wickham observed, "that the present mo- 



30 THE TRIAL OF AAEON BURR 

tion was unprecedented in a system of erim 
inal jurisprudence, which was upwards of one 
hundred years old." Continuing, Mr. Wick- 
ham said: ''What, sir, is the tendency of this 
application? What is the motion? I have no 
doubt, the gentlemen mean to act correctly — I 
wish to cast no imputation ; but the counsel and 
the court well know that there are a set of busy 
people (not I hope employed by the Govern- 
ment) who, thinking to do right, are laboring 
to ruin the reputation of my client. I do not 
charge the Government with this attempt; but 
the thing is actually done. Attempts have been 
made. The press from one end of the conti- 
nent to the other, has been enlisted on their side 
to excite prejudice against Colonel Burr. Prej- 
udice? Yes, they have influenced the public 
opinion by such representations, and by per- 
sons not passing between the prisoner and his 
country, but by ex parte evidence and mutilated 
statements. Ought not this court to bar the 
door as much as possible, against such misrep- 
resentation? to shut out every effort to excite 
further prejudice, until the case is decided by 
a sworn jury? Not by the floating rumors 



THE TRIAL OF AARON BURR 31 

of the day, but by the evidence of sworn wit- 
nesses?" 

In reply to Mr. Botts and Mr. Wickham, Mr. 
Wirt for the first time addressed the court: 

''Where is the crime," said Mr. Wirt, "of 
considering Aaron Burr a subject to the ordi- 
nary operation of the human passions? To- 
wards any other man, it seems, the attorney 
would have been justified in using precautions 
against alarms and escapes ; it is only improper 
when applied to this man. Really, sir, I recol- 
lect nothing in the history of his deportment 
which renders it so very incredible, that Aaron 
Burr would fly from a prosecution. But at all 
events, the attorney is bound to act on gen- 
eral principles, and to take care that justice be 
had against every person accused, by whatever 
name he may be called, or by whatever previous 
reputation he may be distinguished. This mo- 
tion, however, it seems, is not legal at this time, 
because there is a grand jury in session. The 
amount of the position is, that though it may 
be generally true, that the court possesses the 
power to hear and commit, yet, if there be a 
grand jury, the power of the court is sus- 



32 THE TRIAL OF AARON BURR 

pended ; and the commitment cannot be had un- 
less in consequence of a presentment or bill of 
indictment found by that body. The general 
power of the court being admitted, those who 
rely on this exception, should support it by au- 
thority; and, therefore, the loud call for prec- 
edents, which we have heard from the other 
side come improperly from that quarter. We 
ground this motion in the general power of the 
court to commit: let those who say that this 
general power is destroyed by the presence of 
a grand jury show one precedent to countenance 
this original and extraordinary motion. I be- 
lieve, sir, I may safely affirm, that not a single 
reported case or dictum can be found, which 
has the most distant bearing towards such an 
idea. Sir, no such dictum or case ought to ex- 
ist. It would be unreasonable and destructive 
of the principles of justice. 

''But, sir, we are told, that the investigation 
is calculated to keep alive the public prejudice; 
and we hear great complaints about these public 
prejudices. The coimtry is represented as 
being filled with misrepresentations and calum- 
nies against Aaron Burr ; the public indignation, 



THE TRIAL OF AAEON BURR 33 

it is said, is already sufficiently excited. This 
argument is also inapplicable to our right to 
make this motion ; it does not affect the legality 
of our procedure. Sir, if Aaron Burr be in- 
nocent instead of resisting this motion, he ought 
to hail it with triumph and exultation. What 
is it that we propose to introduce! Not the 
rumors that are floating through the world, nor 
the hulk of the multitude, nor the speculations 
of newspapers, but the evidence of facts. We 
propose, that the whole evidence exculpatory 
as well as accusative, shall come before you; 
instead of exciting, this is the true mode of cor- 
recting, prejudices. The world, which it is 
said has been misled and influenced by false- 
hood, will now hear the truth. Let the truth 
come out, let us know how much of what we 
have heard is false, how much of it is true ; how 
much of what we feel is prejudice, how much 
of it is justified by fact. Whoever before heard 
of such an apprehension as that which is pro- 
fessed on the other side! Prejudice excited hy 
evidence! Evidence, sir, is the great cor- 
rector of prejudice. Why then does Aaron 
Burr shrink from it ? It is strange to me that a 



34 THE TRIAL OF AARON BURR 

man, who complains so much of being, without 
cause, illegally seized and transported by a 
military officer, should be afraid to confront the 
evidence; evidence can be promotive only of 
truth. I repeat it then, sir, why does he shrink 
from the evidence? The gentlemen on the 
other side can give the answer. On our part we 
are ready to produce that evidence. 

''The gentleman assures us, that no imputa- 
tion is meant against the Government. Oh no, 
sir; Colonel Burr indeed has been oppressed, 
has been persecuted; but far be it from the 
gentleman to charge the Government with it. 
Colonel Burr indeed has been harassed by a 
military tyrant, who is 'the instrument of the 
Government bound to blind obedience ' ; but the 
gentleman could not by any means be under- 
stood as intending to insinuate aught to the 
prejudice of the Government. The gentleman is 
understood, sir; his object is correctly under- 
stood. He would divert the public attention 
from Aaron Burr and point it to another quar- 
ter. He would, too, if he could, shift the popu- 
lar displeasure, which he has spoken of, from 



THE TRIAL OF AAEON BURR 35 

Aaron Burr to another quarter. These re- 
marks were not intended for your ear, sir ; they 
were intended for the people who surround us ; 
they can have no effect upon the mind of the 
court. I am too well acquainted with the 
dignity, the firmness, the illumination of this 
bench, to apprehend any such consequence. 
But the gentlemen would balance the account 
of popular prejudices; they would convert the 
judicial inquiry into a political question; they 
would make it a question between Thomas 
Jefferson and Aaron Burr. The purpose is 
well understood, sir ; but it shall not be served. 
I will not degrade the administration of this 
country by entering on their defence. Besides, 
sir, this is not our business ; at present we have 
an account to settle, not between Aaron Burr 
and Thomas Jefferson, but between Aaron Burr 
and the laws of his country. Let us finish his 
trial first. The administration, too, will be 
tried before their country; before the world. 
They, sir, I believe, will never shrink, either 
from the evidence or the verdict." 
Mr. Hay then delivered an elaborate argu- 



36 THE TRIAL OF AARON BURR 

ment in support of his motion and was followed 
by Mr. Randolph. Colonel Burr concluded the 
debate in a ten minutes' speech. 

"The case is this," says Colonel Burr: "No 
man denies the authority of the court, to com- 
mit for a crime ; but no commitment ought to be 
made, except on probable cause. This author- 
ity is necessary; because policy requires, that 
there should be some power to bind an accused 
individual for his personal appearance, until 
there shall have been sufficient time to obtain 
witnesses for his trial ; but this power ought to 
be controlled as much as possible. 

' ' The question in the present case, is whether 
there is probable cause of guilt; and whether 
time ought to be allowed to collect testimony 
against me. This time ought generally to be 
limited ; but there is no precise standard on the 
subject; and much is of course left to the sound 
discretion of the court. Two months ago, how- 
ever, you declared that there had been time 
enough to collect the evidence necessary to 
commit, on probable cause; and surely, if this 
argument was good then, it is still better now. 

"As soon as a prosecutor has notice of a 



THE TRIAL OF AAEON BURR 37 

crime, lie generally looks out for witnesses. It 
is his object to obtain probable cause for com- 
mitting the accused. Five months ago, a high 
authority declared that there was a crime ; that 
I was at the head of it; and it mentioned the 
very place, too, where the crime was in a state 
of preparation. The principal witness against 
me, is said to be Mr. Wilkinson. Now, from 
what period is the time to be computed? If, 
from the time I was suspected, five months ; 
if, from the time when I was seized, three 
months; or is it to be only computed from 
the time when I was committed? So that it is 
near forty days since the notice must have ar- 
rived at New Orleans. But a vessel navigates 
the coast, from New Orleans to Norfolk, in three 
weeks. I contend, however, that witnesses 
ought to be produced, from the very time when 
the crimes are said to be committed. There is, 
then, no apology for the delay of the prosecu- 
tion, as far as it respects the only person for 
whom an apology is attempted to be made. 

"There are other serious objections to my 
situation. Must I be ready to proceed to trial? 
True, sir, but then it must be in their own way. 



38 THE TRIAL OF AAEON BURR 

Are we then on equal terms here? Certainly 
not. And again, as to affidavits. The United 
States can have compulsory process to obtain 
them; but I have no such advantage. An ex 
parte evidence, then, is brought before this 
court, on a motion for commitment. The evi- 
dence on one side only is exhibited ; but if I had 
mine also to adduce, it would probably con- 
tradict and counteract the evidence for the 
United States. Well, sir, and these affidavits 
are put into the newspapers, and they fall into 
the hands of the grand jury. I have no such 
means as these, sir; and where then is the 
equality between the Government and my- 
self. 

"The opinion of the court, too, is to be com- 
mitted against me. Is this no evil! 

"A sufficient answer, sir, has been given to 
the argument about my delay; and its disad- 
vantages to myself have been ably developed. 
But my counsel have been charged with dec- 
lamation against the Government of the United 
States. I certainly, sir, shall not be charged 
with declamation; but surely it is an estab- 
lished principle, sir, that no government is so 



THE TRIAL OF AAEON BURR 39 

high as to be beyond the reach of criticism; and 
it is more particularly laid down, that this 
vigilance is more peculiarly necessary, when 
any government institutes a prosecution: and 
one reason is, on account of the vast dispropor- 
tion of means which exists between it and the 
accused. But, if ever there was a case which 
justified this vigilance, it is certainly the pres- 
ent one, when the Government has displayed 
such uncommon activity. If, then, this Govern- 
ment has been so peculiarly active against me, 
it is not improper to make the assertion here, 
for the purpose of increasing the circumspec- 
tion of the court. ' ' 

Mr. Burr observed, that he meant by persecu- 
tion, the harassing of any individual, contrary 
to the forms of law; and that his case, un- 
fortunately, presented too many instances of 
this description. He would merely state a few 
of them. He said that his friends had been 
everywhere seized by the military authority; a 
practice truly consonant with European despot- 
isms. He said that persons had been dragged 
by compulsory process before particular tri- 
bunals, and compelled to give testimony against 



; 40 THE-TOIAL OF AAEON BURR 

him'i "Hi^ papers, too, had been seized. ''And 
- yet, in Engisfeidj" said lie, "where we say they 
I know nothing of liberty, a gentleman, who had 
' been seized and detained two hours, in a back 
parlour, had obtained damages to the amount 
of one thousand guineas." He said that an 
order had been issued to kill him, as he was de- 
scending the Mississippi, and seize his property. 
And yet, they could only have killed his person, 
even if he had been formally condemned for 
treason. . He said that even post-offices had 
been broken open, and robbed of his papers; 
that, in the Mississippi Territory, even an in- 
dictment was about to be laid against the post- 
master; that he had always taken this for a 
felony; but that nothing seemed too extrav- 
agant to be forgiven by the amiable morality 
of this Government. "All this," said Mr. Burr, 
"may only prove that my case is a solitary 
exception from the general rule. The Govern- 
ment may be tender, mild and humane to every- 
body but me. If so, to be sure it is of little 
consequence to anybody but myself. But surely 
I may be excused if I complain a little of such 
proceedings." 













i\ .^Ck-i^) cyno-yyi.-c^ °'iJjC.eyut>in^ lyx^iy/ Cct^y ai-^^ C 












AFFIDAVIT OF BURR FOR SUBPOENA Z?t/C£5 r£CC/M FOR 
PRESIDENT JEFFERSON 

Facing />. 40 



THE TRIAL OP AAEON BURR 41 

''Our President," said Mr. Burr, "is a law- 
yer and a great one too. He certainly ought to 
know what it is that constitutes a war. Six 
months ago, he proclaimed that there was a 
civil war. And yet, for six months have they 
been hunting for it, and still cannot find one 
spot where it existed. There was, to be sure, a 
most terrible war in the newspapers; but no- 
where else." 

The next day the court in a written opinion 
held that the motion was a proper one at this 
stage of the proceedings, and the attorney for 
the United States was permitted to open his 
testimony; but in doing so, the Chief Justice 
expressed his regrets that the result of the mo- 
tion "may be publications unfavorable to the 
justice and to the right decision of the case." 
Counsel were impressed with this observation 
of the court, and an attempt was made to reach 
an agreement whereby a public disclosure of 
the evidence at this time might be avoided. It 
was proposed by counsel for the United States 
that Colonel Burr's recognizance be made suffi- 
ciently large to insure his appearance to an- 
swer the charge of high treason against the 



42 THE TRIxlL OF AAEON BURR 

United States, but on the following day this 
proposition was rejected by Colonel Burr. Mr. 
Hay then proceeded with some reluctance to 
the examination of witnesses in support of his 
motion to commit Burr, as "he felt the full 
force of the objections to a disclosure of the evi- 
dence, and the necessity of the court declaring 
its opinion before the case was laid before the 
jury." 

The attorney for the United States first 
sought to read the deposition of General Wil- 
kinson, which precipitated the question of the 
order in which the testimony was to be intro- 
duced and its admissibility. The Supreme 
Court had already decided in the case of Swart- 
out and Bollman that the deposition of Wilkin- 
son might be admitted in evidence under cer- 
tain circumstances, but that it did not contain 
any proof of an overt act. The Chief Justice 
observed that no evidence certainly had any 
bearing upon the present case unless the overt 
act be proved, but he would permit the at- 
torney for the United States to pursue his own 
course as to the order of introducing his testi- 
mony. 



THE TRIAL OF AARON BURR 43 

A lengthy argument here ensued, in which 
Mr. Botts took a conspicuous part. In a most 
lucid manner he defined the crime of high trea- 
son under the Constitution of the United 
States, and applied it to the issue before the 
court. 

"First," he said, "it must be proved that 
there was an actual war. A war consists 
wholly in acts, and not in intentions. The acts 
must be in themselves acts of war ; and if they 
be not so intrinsically, words or intentions can- 
not make them so. In England, when conspir- 
ing the death of the King was treason, the quo 
animo formed the essence of the offence; but, 
in America, the national convention has con- 
fined treason to the act. We cannot have a 
constructive war within the meaning of the 
Constitution. An intention to levy war, is not 
evidence that a war was levied. Intentions are 
always mutable and variable; the continuance 
of guilty intentions is not to be presumed. 
Secondly, the war must not only have been 
levied, but Colonel Burr must be proved to 
have committed an overt act of treason in that 
war. A treasonable intention to cooperate 



44 THE TRIAL OF AAEON BURR 

is no evidence of an actual cooperation. The 
acts of others, even if in pursuance of his 
plan, would be no evidence against him. It 
might not be necessary that he should be pres- 
ent, perhaps; but he must be, at the time of 
levying the war, cooperating by acts, or, in the 
language of the Constitution, be committing 
overt acts. Thirdly, the overt act by the ac- 
cused, as an actual war, must not only be 
proved, but it must be proved to have been 
committed within this district. Fourthly, 
the overt act must be proved by two wit- 
nesses." 

The Chief Justice declared this view of the 
law to be correct, and General Wilkinson's 
deposition was accordingly put aside. 

Mr. Hay realized the utter futility of his 
efforts to commit Burr on the charge of trea- 
son at this stage of the case, and readily con- 
sented to Burr's proposition to double the 
amount of his bond to answer tlie charge of a 
misdemeanor. lAither Martin, who appeared 
for the first time, became one of his sureties. 
He declared in open court that he was happy to 
have this opportunity to give a public proof of 



THE TRIAL OF AAEON BURR 45 

his confidence in the honor of Colonel Burr, and 
of his belief in his innocence. 

General Wilkinson had not as yet put in his 
appearance, and much impatience was mani- 
fested because of the inconvenience he had 
caused. The grand jury were therefore ad- 
journed from day to day until the second day 
of June, when they were adjourned until the 
9th, on which last named day he was expected 
to arrive. 

The court met accordingly on the 9th, and 
after the names of the grand jury had been 
called and explanations offered as to the con- 
tinued absence of General Wilkinson, Colonel 
Burr moved the court to issue a subpoena 
diirces tecum addressed to the President of the 
United States, requiring him to produce cer- 
tain papers, and on the following day he pre- 
sented to the court an affidavit, drawn up and 
sworn to by himself in open court in support 
of his motion. In this affidavit he sets forth 
that he has great reason to believe, that a let- 
ter from General Wilkinson to the President 
of the United States, dated October 21st, 1806, 
as mentioned in the President's message of the 



46 THE TRIAL OF AARON BURR 

22nd January, 1807, to both Houses of Congress, 
together with the documents accompanying the 
said letter, and copy of the answer of said 
Thomas Jefferson, or of anyone by his author- 
ity, to the said letter, may be material in his 
defence in the prosecution against him. And 
further that he has reason to believe, the 
military and naval orders given by the presi- 
dent of the United States, through the depart- 
ments of war and of the navy, to the officers 
of the army and navy, at or near New Orleans 
stations, touching or concerning the said Burr, 
or his property, will also be material in his de- 
fense ; and that he had made a personal request 
for copies of these papers during a recent visit 
to Washington, and had been refused. 

Mr. Martin in support of the propriety of 
granting this particular subpoena laid down as 
a general principle, in all civil or criminal cases, 
that every man had a right by process to estab- 
lish his rights or his innocence. He asserted 
that one of the papers necessary to the defense 
is the original letter from General Wilkinson 
described in Burr 's affidavit. The other papers 
are copies of official orders by the navy and 



THE TRIAL OF AAEON BURR 47 

war departments. He had supposed that every 
citizen was entitled to such copies of offi- 
cial papers as are material to him, and he had 
never heard of but one instance where they were 
refused, and this was under presidential in- 
fluence. 

"We intend to show," says Mr. Martin, 
"that, by this particular order, his property 
and his person were to be destroyed; yes, by 
these tyrannical orders, the life and property 
of an innocent man were to be exposed to de- 
struction. We did not expect these originals 
themselves. But we did apply for copies ; and 
were refused under presidential influence. In 
New York, in the farcical trials of Ogden and 
Smith, the officers of the Government screened 
themselves from attending, under the sanction 
of the President's name. Perhaps the same 
farce may be repeated here; and it is for this 
reason that we applied directly to the President 
of the United States. Whether it would have 
been best to have applied to the Secretaries of 
State, of the Navy and War, I cannot say. All 
that we want is the copies of some papers, and 
the original of another. This is a peculiar case, 



48 THE TRIAL OF AARON BURR 

sir. The President has undertaken to pre- 
judge this trial by declaring, that, 'of his guilt 
there can be no doubt.' He has assumed to 
himself the knowledge of the Supreme Being 
himself, and pretended to search the heart of 
my highly respected friend. He has pro- 
claimed him a traitor in the face of that coun- 
try, which has rewarded him. He has let slip 
the dogs of war, the hell-hounds of persecution, 
to hunt down my friend. And would this 
President of the United States, who has raised 
all of this absurd clamor, pretend to keep back 
the papers which are wanted for this trial, 
where life is at stake 1 It is a sacred principle, 
that in all such cases, the accused has a right to 
all the evidence which is necessary to his de- 
fense. And whoever withholds, wilfully, infor- 
mation that would save the life of a person, 
charged with a capital offence, is substantially 
a murderer, and so recorded in the registry of 
Heaven." 

Mr. Wirt replied to Mr. Martin, and in the 
course of his argument, made the following ref- 
erence to Martin's arraignment of Jefferson 
and the administration : 



THE TRIAL OF AARON BURR 49 

"I cannot take my seat, sir, without express- 
ing my deep and sincere sorrow at the policy 
which the gentlemen in the defense have thought 
it necessary to adopt. As to Mr. Martin, I 
should have been willing to impute this fervid 
language to the sympathies and resentments of 
that friendship which he has taken such fre- 
quent occasions to express for the prisoner, his 
honourable friend. In the cause of friendship 
I can pardon zeal even up to the point of intem- 
perance; but the truth is, sir, that before Mr. 
Martin came to Richmond, this policy was 
settled, and on every question incidentally 
brought before the court, we were stunned with 
invectives against the administration. I appeal 
to your recollection, sir, whether this policy was 
not manifested even so early as in those new and 
until now unheard of challenges to the grand 
jury for favour? Whether that policy was not 
followed up with increased spirit, in the very 
first speeches which were made in this case; 
those of Mr. Botts and Mr. Wickham on their 
previous question pending the attorney's mo- 
tion to commit? Whether they have not seized 
with avidity every subsequent occasion, and on 



50 THE TRIAL OF AARON BURR 

every mere question of abstract law before the 
court, flew off at a tangent from tlie subject, to 
launch into declamations against the govern- 
ment? Exhibiting the prisoner continually as 
a persecuted patriot; a Russell or a Sidney, 
bleeding under the scourge of a despot, and dy- 
ing for virtue 's sake ! If there be any truth in 
the charges against him, how different were the 
purposes of his soul from those of a Russell or a 
Sidney ! I beg to know what gentlemen can in- 
tend, expect, or hope, from these perpetual phi- 
lippics against the Government? Do they flat- 
ter themselves that this court feel political 
prejudices which will supply the place of argu- 
ment and innocence on the part of the prisoner ? 
Their conduct amounts to an insinuation of the 
sort. But I do not believe it. On the contrary, 
I feel the firm and pleasing assurance, that as to 
the court, the beam of their judgment will re- 
main steady, although the earth itself should 
shake under the concussion of prejudice. Or is 
it on the bystanders that the gentlemen expect 
to make a favourable impression? And do they 
use the court merely as a canal, through which 
they may pour upon the world their undeserved 



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THE TRIAL OF AAEON BURR 51 

invectives against the Government? Do they 
wish to divide the popular resentment and 
diminish thereby their own quota? Before the 
gentlemen arraign the administration, let them 
clear the skirts of their client. Let them prove 
his innocence; let them prove that he has not 
covered himself with the clouds of mystery and 
just suspicion ; let them prove that he has been 
all along erect and fair, in open day, and that 
these charges against him are totally ground- 
less and false. That will be the most eloquent 
invective which they can pronounce against the 
prosecution ; but until they prove this innocence, 
it shall be in vain that they attempt to divert 
our minds to other objects, and other inquiries. 
We will keep our eyes on Aaron Burr until he 
satisfies our utmost scruple, I beg to know^, sir, 
if the course which gentlemen pursue is not dis- 
respectful to the court itself? Suppose there 
are any foreigners here accustomed to regular 
government in their own country, what can they 
infer from hearing the federal administra- 
tion thus reviled to the federal judiciary? 
Hearing the judiciary told, that the administra- 
tion are 'Bloodhounds, hunting this man with 



52 THE TRIAL OF AARON BURR 

a keen and savage thirst for blood; that they 
now sujDpose they have hunted him into their 
toils and have him safe. ' Sir, no man, foreigner 
or citizen, who hears this language addressed to 
the court, and received with all the complacency 
at least which silence can imply, can make any 
inferences from it very honourable to the court. 
It would only be inferred, while they are thus 
suffered to roll and luxuriate in these gross in- 
vectives against the administration, that they 
are furnishing the joys of a Mahometan para- 
dise to the court as well as to their client. I 
hope that the court, for their own sakes, will 
compel a decent respect to that government of 
which they themselves form a branch. On our 
part, we wish only a fair trial of this case. If 
the man be innocent, in the name of God let him 
go ; but while we are on the question of his guilt 
or innocence, let us not suffer our attention and 
judgment to be diverted and distracted by the 
introduction of other subjects foreign to the 
inquiry. ' ' 

The counsel for the prosecution admitted that 
the President of the United States was amen- 
able to an ordinary subpoena ad testificandum 



THE TRIAL OF AAEON BURR 53 

as any other citizen, but that the application for 
a subpoena duces tecum was addressed to the 
discretion of the court, and did not issue as a 
process of right. Besides, the papers required 
to be produced by such a process must be shown 
to be material for the defense. They ques- 
tioned the propriety of compelling the chief 
magistrate to produce in court any papers in 
his possession not public in its character. They 
further contended that until the grand jury had 
found a true bill and the prosecutor had an- 
nounced his intention to proceed to a trial 
thereon the prisoner had no right to legal 
process. 

After five days of debate the Chief Justice 
delivered an elaborate opinion on the motion of 
Colonel Burr. He decided that the subpoena 
duces tecum directed to the president of the 
United States might issue. He held that any 
person charged with a crime in the courts of the 
United States has a right, before, as well as 
after indictment, to the process of the court to 
compel the attendance of his witnesses ; that in 
the provisions of the Constitution, and of the 
statutes which give to the accused a right to the 



54 THE TRIAL OF AARON BURR 

compulsory process of the court, there is no ex- 
ception whatever. 

''If, upon any principle," said the Chief Jus- 
tice, "the President could be construed to stand 
exempt from the general provisions of the Con- 
stitution, it would be because his duties, as 
chief magistrate, demand his whole time for 
national objects. But it is apparent that this 
demand is not unremitting; and, if it should 
exist at the time when his attendance on a 
court, is required, it would be sworn on tlie re- 
turn of the subpoena, and would rather consti- 
tute a reason for not obeying the process of the 
court, than a reason against it being issued. 
The guard furnished to this high office to pro- 
tect him from being harassed by vexatious and 
unnecessary subpoenas, is to be looked for in 
the conduct of a court after those subpoenas 
have issued ; not in any circumstance which is to 
precede their being issued. If, in being sum- 
moned to give his personal attendance to testify, 
the law does not discriminate between the Presi- 
dent and a private citizen, what foundation is 
there for the opinion, that this difference is cre- 
ated by the circumstance, that his testimony de- 



THE TRIAL OF AARON BURR 55 

pends on a paper in liis possession, not on facts, 
wliich come to his knowledge otherwise than by 
writing! The court can perceive no foundation 
for such an opinion. The propriety of intro- 
ducing any paper into a case, as testimony, must 
depend on the character of the paper, not on the 
character of the person who holds it. A sub- 
poena duces tecum, then, may issue to any per- 
son to whom any ordinary subpoena may issue,, 
directing him to bring any paper of which the 
party praying it has a right to avail himself 
as testimony; if, indeed, that be the neces- 
sary process for obtaining the view of such 
paper. ' ' 

The decision of the Chief Justice and the stric- 
tures of Martin threw Jefferson into a violent 
rage. We find him promptly writing to Mr. 
Hay, * ' Shall we move to commit Luther Martin 
as particeps criminis with Burr? Grayball 
will fix upon him misprision of treason at least, 
and, at any rate, his evidence will pull down this 
unprincipled and impudent Federal bull-dog, 
and add another proof that the most clamorous 
defenders of Burr are all his accomplices." 
And again he writes to Hay, after discussing at 



56 THE TEIAL OF AAEON BURR 

length the intimation in the decision of the 
Chief Justice that even the bodily presence of 
the President might be compelled by the court, 
which proposition he indignantly denied, 'Hhat 
the leading feature of our Constitution is the 
independence of the legislative, executive and 
judiciary of each other ; and none are more jeal- 
ous of this than the judiciary. But would the 
executive be independent of the judiciary if he 
were subject to the commands of the latter, and 
to imprisonment for disobedience, if the smaller 
courts could bandy him from pillar to post, keep 
him constantly trudging from North to South 
and East and West and withdraw him entirely 
from his executive duties?" 

The law and reasoning of the decision of the 
/ Chief Justice were convincing. Jefferson knew 
that under the Constitution the President had 
no superior right to those of any other citizen, 
and, while directing substantially all papers re- 
quired by the subpoena duces tecum to be fur- 
nished, he refused to appear in person in court. 
He openly defied the process of the court. He 
intimated that if the court attempted to enforce 
its writ he would meet force with force. The 



THE TRIAL OF AARON BURR 57 

Chief Justice realized what this meant, and the 
matter was quietly dropped. 

On Saturday, June 13th, twenty-two days ; 
after the court had convened, General Wilkin- 
son arrived in the city of Richmond, and on the 
following Monday he was sworn and sent to the , 
grand jury, with a notification that it would 
facilitate their inquiries if they would examine 
him immediately. 

Wilkinson was at the head of the army and . 
Governor of the territory of Louisiana, to which / 
latter office he had been appointed about the ' 
close of the session of Congress that Burr as 
Vice-President presided over the Senate. Be- 
tween him and Burr a long friendship had ex- 1 
isted. They had been fellow soldiers in the 
War of the Revolution — had shared together 
the hardships of the winter of 1775-6, and the J 
perils of the unsuccessful attack on the city of ' 
Quebec. While it was true they had seen very 
little of each other since the war they had at 
intervals, and only a short time before the ar- , 
rest of Burr, corresponded confidentially and | 
in cipher. Lie was undoubtedly in the secrets 
of Burr, until he saw the impending explosion, 



58 THE TRIAL OF AAEON BURE 

I and then lie became active in exposing the plot 
' and bringing Burr to trial. Certain it is that 
Burr regarded him as an associate and de- 
nounced his treachery. 

The meeting between Burr and his former 
friend Wilkinson was dramatic, and is graph- 
ically described by Washington Irving. 

"Burr," says Irving, *'was seated with his 
back to the entrance, facing the judges, and con- 
versing with one of his counsel when Wilkinson 
strutted into the court and took a stand in a 
parallel line with Burr on his right hand. Here 
he stood for a moment swelling like a turkey 
cock, and bracing himself up for the encounter 
of Burr's eyes. The latter did not take any 
notice of him until the Judge directed the clerk 
to swear General AVilkinson; at the mention of 
the name Burr turned his head, looked him full 
in the face with one of his piercing regards, 
swept his eye over his whole person from head 
conversing with his counsel as tranquilly as 
ever. The w^hole look was over in an instant, 
to foot, as if to scan its dimensions and then 
cooly resumed his former position, and went on 
but it was an admirable one. There was no ap- 



THE TRIAL OF AARON BURR 59 

pearance of study or constraint in it ; no affec- 
tation of disdain or defiance ; a slight expression 
of contempt played over his countenance, such 
as you would show on regarding any person to 
whom you were indifferent, but whom you con- 
sidered mean and contemptible." 

The examination of witnesses by the grand 
jury continued from day to day until June 24th, 
when in the midst of an argument by Mr. Botts 
for an attachment against General Wilkinson 
for endeavoring to prevent the free course of 
testimony, the grand jury entered the court- 
room, and speaking through its distinguished 
foreman, stated that they had agreed upon sev- 
eral indictments, which he handed to the clerk 
of the court. The clerk then read the following 
endorsements thereon : 

'^An indictment against Aaron Burr for 
treason — a true bill." 

"An indictment against Aaron Burr for 
a misdemeanor — a true bill." 

''An indictment against Herman Blanner- 
hassett for treason — a true bill." 

''An indictment against Herman Blanner- 
hassett for a misdemeanor — a true bill." 



60 THE TRIAL OF AAEON BURR 

The grand jury then adjourned until the next 
day, and at the conclusion of Mr. Bott's argu- 
ment on the motion for attachment, Colonel 
Burr with his wonted serene and placid air 
arose and stated to the court, that as true bills 
had been found against him, it was probable, the 
United States Attorney would move for his com- 
mitment ; he would, however, suggest two ideas 
for the consideration of the court. ''One was 
that it was within their discretion to bail in 
certain cases, even when the punishment was 
death ; and the other was, that it was expedient 
for the court to exercise their discretion in this 
instance, as he should prove, that the indict- 
ment against him had been obtained by per- 
jury." 

Mr. Hay moved for his commitment. He 
stated that if the court had the power to bail, 
it was only to be exercised according to their 
sound discretion. After much time had been 
spent in debate, the Chief Justice observed that 
''he was under the necessity of committing 
Colonel Burr." He was accordingly committed 
to the custody of the Marshal, and conducted to 



THE TRIAL OF AARON BURR 61 

the city jail, for the County of Henrico and the 
City of Richmond; but two days later on the 
affidavit of his counsel, who had visited him in 
his confinement, that the miserable state of the 
prison would endanger his health, and that it 
was so arranged as to deprive him of consulta- 
tion with his counsel, and upon the further re- 
port of the Surveyor of the Public Buildings of 
the United States, the court entered the follow- 
ing order: 

''Whereupon, it is ordered, that the Marshal 
of this district, do cause the front room of the 
house now occupied by Luther Martin, Esq., 
which room has been and is used as a dining 
room, to be prepared for the reception and safe- 
keeping of Colonel Aaron Burr, by securing the 
shutters to the windows of the said room by 
bars, and the door by a strong bar or pad-lock. 
And that he employ a guard of seven men to be 
placed on the floor of the adjoining unfinished 
house, and on the same story with the before 
described front room, and also, at the door open- 
ing into the said front room ; and upon the Mar- 
shal's reporting to the court that the said room 



62 THE TRIAL OF AARON BURR 

has been so fitted up, and the guard employed, 
that then the said Marshal be directed, and he 
is hereby directed, to remove to the said room, 
the body of the said Aaron Burr from the public 
gaol, there to be by him safely kept." 

This building now known as Blair's Drug 
Store, still stands at the corner of Ninth and 
Broad Streets, in the City of Richmond, Vir- 
ginia. 

The grand jury had on the day previous 
brought in indictments for treason against Ex- 
Senator Jonathan Dayton of New^ Jersey, Ex- 
Senator John Smith of Ohio, Comfort Tyler and 
Israel Smith of New York ; and Davis Floyd of 
the territory of Indiana. This completed their 
inquiries, and after an appropriate address by 
the Chief Justice in which he complimented 
them upon the great patience and cheerful at- 
tention with which they had performed the ar- 
duous and laborious duties in which they had 
been so long engaged, discharged them from 
furtlier attendance on the court. 

After some discussion as to procedure, the 
clerk of the court read the indictment against 
Burr, for treason against the United States, 



THE TRIAL OF AARON BURR 63 

which with the endorsements thereon (exclu- 
sive of the verdict of the trial jury), is as fol- 
lows: 

''VIRGINIA DISTRICT: 

"IN THE CIRCUIT COURT OF THE 
UNITED STATES OF AMERICA, IN AND 
FOR THE FIFTH CIRCUIT AND VIRGINIA 
DISTRICT : 

**The grand inquest of the United States of 
America, for the Virginia district, upon their 
oath do present that Aaron Burr, late of the 
city of New York, and State of New York, At- 
torney at Law, being an inhabitant of and re- 
siding within the United States, and under the 
protection of the laws of the United States, and 
owing allegiance and fidelity to the same United 
States, not having the fear of God before his 
eyes, nor weighing the duty of his said alle- 
giance, but being moved and seduced by the in- 
stigation of the devil, wickedly devising and 
intending the peace and tranquillity of the said 
United States to disturb and to stir, move and 
excite insurrection, rebellion and war against 
the said United States, on the tenth day of De- 



64 THE TRIAL OF AAEON BURR 

cember in the year of Christ one thousand eight 
hundred and six at a certain place called and 
known by the name of Blannerhassett's Island, 
in the county of Wood and District of Virginia 
aforesaid, and within the jurisdiction of this 
Court, with force and arms unlawfully, falsely, 
maliciously and traitorously did compass, im- 
agine and intend to raise and levy w^ar, insur- 
rection and rebellion against the said United 
States ; and in order to fulfil and bring to effect 
the said traitorous compassings, imaginations 
and intentions of him, the said Aaron Burr, he, 
the said Aaron Burr, afterwards, to wit, on the 
said tenth day of December in the year one 
thousand eight hundred and six aforesaid, at 
the said island, called Blannerhassett's Island 
as aforesaid, in the County of Wood aforesaid 
in the District of Virginia aforesaid and within 
the jurisdiction of this Court, with a great mul- 
titude of persons whose names at present are 
unknown to the grand inquest aforesaid, to a 
great number, to w^it, to the number of thirty 
persons and upwards, armed and arrayed in a 
warlike manner, that is to say, with guns. 



THE TRIAL OF AARON BURR 65 

swords, and dirks and other warlike weapons 
as .well offensive as defensive, being then and 
there unlawfully, maliciously and traitorously 
assembled and gathered together, did falsely 
and traitorously assemble and join themselves 
together against the said United States, and 
then and there with force and arms did falsely 
and traitorously, and in warlike and hostile 
manner, array and dispose themselves against 
the said United Sattes, and then and there that 
is to say on the day and in the year aforesaid 
at the island aforesaid commonly called Blan- 
nerhassett's Island in the County aforesaid of 
Wood, within the Virginia district, and the juris- 
diction of this Court, in pursuance of such their 
traitorous intentions and pui*poses, aforesaid, 
he the said Aaron Burr with the said persons 
so as aforesaid traitorously assembled and 
armed and arrayed in manner aforesaid, most 
wickedly, maliciously and traitorously did or- 
dain, prepare and levy war against the said 
United States, contrary to the duty of their 
said allegiance and fidelity, against the Consti- 
tution, peace and dignity of the said United 



66 THE TRIAL OF AAEON BURR 

States, and against the form of the Act of Con- 
gress of the said United States, in such case 
made and provided : 

"And the grand inquest of the United States 
of America for the Virginia district upon their 
oaths aforesaid do further present, that the said 
Aaron Burr, late of the City of New York, and 
State of New York, attorney at law, being an 
inhabitant of and residing within the United 
States and under the protection of the laws of 
the United States, and owing allegiance and 
lidelity to the same United States, not hav- 
ing the fear of God before his eyes, nor 
weighing the duty of his said allegiance, 
but being moved and seduced by the instiga- 
tion of the devil, wickedly devising and in- 
tending the peace and tranquillity of the 
United States to disturb, and to stir, move, and 
excite insurrection, rebellion and war against 
the said United States, on the eleventh day of 
December in the year of our Lord one thousand 
eight hundred and six, at a certain place, called 
and known by the name of Blannerhassett's 
Island in the County of Wood and District of 
Virginia aforesaid and within the jurisdiction 



THE TRIAL OF AARON BURR 67 

of this court, witli force and arms, unlawfully, 
falsely, maliciously and traitorously did com- 
pass, imagine and intend to raise and levy war, 
insurrection and rebellion against the said 
United States, and in order to fulfil and bring 
to effect the said traitorous compassings, im- 
aginations and intentions of him the said Aaron 
Burr, he, the said Aaron Burr, afterwards, to 
wit, on the said last mentioned day of December 
in the year one thousand eight hundred and six 
aforesaid, at a certain place commonly called 
and known by the name of Blannerhassett's 
Island in the said County of Wood, in the Dis- 
trict of Virginia aforesaid, and within the juris- 
diction of this court, with one other great multi- 
tude of persons, whose names at present are 
unknown to the grand inquest aforesaid, to a 
great number, to wit, to the number of thirty 
persons and upwards, armed and arrayed in a 
warlike manner, that is to say, with guns, 
swords and dirks, and other warlike weapons 
as well offensive as defensive being then and 
there unlawfully, maliciously and traitorously 
assembled and gathered together, did falsely 
and traitorously assemble and join themselves 



68 THE TRIAL OF AAEON BURR 

together against the said United States, and 
then and there with force and arms did falsely 
and traitorously and in a warlike and hostile 
manner, array and dispose themselves against 
the said United States, and then and there, that 
is to say, on the day and in the year last men- 
tioned, at the island aforesaid in the County of 
Wood aforesaid, in the Virginia district, and 
within the jurisdiction of this Court, in pur- 
suance of such their traitorous intentions, and 
purposes aforesaid, he the said Aaron Burr 
with the said persons so as aforesaid traitor- 
ously assembled and armed and arrayed in man- 
ner aforesaid, most wickedly, maliciously and 
traitorously did ordain, prepare and levy war 
against the said United States, and further to 
fulfil and carry into effect the said traitorous 
compassings, imaginations and intentions of the 
said Aaron Burr against the said United States, 
and to carry on the war thus levied as afore- 
said against the said United States, the said 
Aaron Burr with the multitude last men- 
tioned at the island aforesaid, in the said 
County of Wood, within the Virginia district 
aforesaid and within the jurisdiction of this 



• THE TRIAL OF AARON BURR 69 

court, did array themselves in a warlike manner, 
with guns and other weapons offensive and de- 
fensive, and did proceed from the said island 
down the river Ohio, in the County aforesaid 
within the Virginia district, and within the jur- 
isdiction of this Court, on the said eleventh day 
of December in the year one thousand eight 
hundred and six aforesaid, with the wicked and 
traitorous intention to descend the said river 
and the river Mississippi and by force and arms 
traitorously to take possession of a City com- 
monly called New Orleans in the territory of 
Orleans belonging to the United States; con- 
trary to the duty of their said allegiance and 
fidelity, against the Constitution peace and dig- 
nity of the said United States and against the 
form of the Act of the Congress of the United 
States in such case made and provided. 

HAY. 

Attorney of the United States for the Virginia 

District. 

''Witness in behalf of the United States. 

1. Thomas Truxton 4. William Eaton 

2. Stephen Decatur 5. William Diiane 

3. Benjamin Stoddert 6. Erick Bollman 



70 THE TRIAL OF AAEON BURR 



• 7. Peter Taylor 


28. 


Edward W. Tupper 


8. Jacob Allbright 


29. 


Edmund B. Dana 


9. Charles Willie 


30. 


James Read 


10. John Graham 


31. 


John G. Henderson 


11. Saml. Swartout 


32. 


Alex. Henderson 


12. Julien Dupeistre 


34. 


Ambrose Smith 


13. Prevost 


35. 


Hugh Phelps 


14. James Miller 


36. 


Gen. Wilkinson 


15. Saml. Kouten 


37. 


Dunbaugh 


16. George Morgan 


38. 


Charlss Lindsay 


17. John Morgan 


39. 


John Manhatton 


18. Thomas Morgan 


40. 


James Knox 


19. Nicholas Perkins 


41. 


William Love 


20. Robert Spenee 


42. 


David Fisk 


21. George Harris 


43. 


Thomas Heartly 


22. Cyrus Jones 


44. 


Stephen S. Welch 


23. Thomas Peterkin 


45. 


James Kenney 


24. Elias Glover 


46. 


Samuel Moxley 


25. Simeon Poole 


47. 


Edw. P. Gaines 


26. Dudley Woodbridge 


48. 


A. D. Smith." 


27. David C. Wallace 






ENDORSED: 


"United States 






vs. 
Aaron Burr. 






Indictment for Treason. 




A true Bill. 






John Randolph." 



\\ ^ '^' 

FINDINGS OF THK CRAXL) AX]) PETIT 
JURIES 

Facing p. 70 



THE TRIAL OF AAEON BURR 71 

At the conclusion of the reading of the indict- 
ment, Mr. Burr addressed the court as follows : 

^'I acknowledge myself to be the person 
named in the indictment: I plead not guilty; 
and put myself upon my country for trial." 

The indictment, as will be observed, specifies 
the place of the overt act to be at Blannerhas- 
sett Island, and the time the 10th day of De- 
cember, 1806. 

The court, when the plea was in, made an 
order for a venire of forty-eight jurors, twelve 
of whom, at least, were to be summoned from I 
Wood County and on the following day, June 
27th, the court ordered the venire facias to issue 
to the marshal, returnable on the 3rd day of 
August and fixed that day for the trial. 

Three days later Burr was, on motion of the 
United States attorney, removed from his lodg- 
ing at the corner of Ninth and Broad Streets, 
and, with the approval of the Governor of Vir- 
ginia, placed in the third story of the peniten- 
tiary, therein to be confined, until the 2nd day 
of August. 

The court pursuant to adjournment met 
promptly at 12 o'clock, Monday, August 3rd, in 



72 THE TRIAL OF AAEON BURR 

the House of Delegates, with Chief Justice Mar- 
shal presiding. Judge Griffin, the District 
Judge, who had heretofore set in the case, did 
not appear until the following Friday. 

George Hay, William Wirt and Alexander 
MacRae appeared as counsel for the prosecu- 
tion, and Edmund Randolph, John Wickham, 
Benjamin Botts, John Baker and Luther Martin 
for the prisoner. Mr. Charles Lee appeared 
about two weeks later. 

The court room was crowded with an im- 
mense throng of citizens, when Burr, accom- 
panied by his son-in-law. Governor Alston, of 
South Carolina, and exhibiting his usual se- 
renity and self-xiossession, entered. The names 
of the jurors were promptly called, and shortly 
thereafter the court adjourned until the follow- 
ing Wednesday, to give counsel for the defense 
time to examine the list of the jurors sum- 
moned. 

The court met pursuant to adjournment, and 
for twelve days was engaged in the selection of 
a jury for the trial of the case. Of the original 
venire of forty-eight, only four, Richard E. 
Parker, David Lambert, Hugh Mercer, and 



THE TRIAL OF AARON BURR 73 

Edward Carrington were elected, and, of the 
second venire for a like number, eight were 
accepted as competent jurors, namely, Chris- 
topher Anthony, James Sheppard, Reuben 
Blakey, Miles Bottes, Plenry C. Coleman, Ben- 
jamin Graves, John M. Sheppard, and Richard 
Curd. 

The jury now being elected and sworn, the 
prisoner was directed to stand up. The clerk 
read the indictment for treason against him, 
and, at the conclusion of the reading, addressed 
the jury in the usual form. The case was then 
opened for the prosecution by Mr. Hay, it being 
agreed that he should fully present the side of 
the government, and immediately thereafter 
proceed with his evidence. 

Mr. Hay dwelt at great length on the crime, 
of treason. 

''In Great Britain," he said, "there are no 
less than ten different species of treason; at 
least that was the nutnber when Blakstone 
wrote, and it is possible that the number may 
have been increased since. But in this coun- 
try, where the principle is established in the 
Constitution, there are only two descriptions of 



74 THE TRIAL OF AAEON BURR 

I treason; and the number being fixed in the 
Constitution itself, can never be increased by 
the legislature, however important and neces- 
sary it should be, in their opinion, that the 
number should be augmented. By the third 
section, article 3 of the Constitution of the 
United States, 'treason against the United 
States shall consist only in levying war against 
them, or in adhering to their enemies; giving 
them aid and comfort.' With respect to the 
latter description, there is no occasion to say 
anything, as the offense charged in the indict- 
ment is ' levying war against the United States ' ; 
but it adds that 'no person shall he convicted 
of treason, unless on the testimony of two ivit- 
nesses to the same overt act, or on confession 
in open court.' " 

The first witness called was General Eaton. 
Colonel Burr objected to the order of the testi- 
mony. He said Mr. Hay had not stated the na- 
ture of the witness' testimony; but he presumed 
that it related to certain conversations said 
to have happened at Washington. He con- 
tended that no such evidence as that, which 
tended only to show intentions or designs, was 



THE TRIAL OF AARON BURR 75 

admissible until an overt act of treason had 
been proved. This question was ably argued 
by counsel on both sides. 

The next day the Chief Justice decided that 
so far as the testimony of General Eaton '' re- 
lates to the fact charged in the indictment, so 
far as it relates to levying war on Blannerhas- 
sett's Island, so far as it relates to a design 
to seize on New Orleans, or to separate by force, 
the Western from the Atlantic states, it is 
deemed relevant and is now admissible : so far 
as it respects other plans to be executed in the 
City of Washington, or elsewhere, if it indicate 
a treasonable design, it is a design to commit 
a distinct act of treason, and is therefore not 
relevant to the present indictment. It can 
only, by showing a general evil intention, render 
it more probable that the intention in the par- 
ticular case was evil. It is merely additional 
or corroborative testimony, and therefore, if 
admissible at any time, it is only admissible ac- 
cording to the rules and principles which the 
court must respect, after hearing that which it 
is to confirm." 

General Eaton was then called to the stand 



76 THE TRIAL OF AAEON BUER 

and examined. He stated in the beginning that 
he knew nothing of any overt act of treason on 
the part of Burr, or of any of the happenings 
on Blannerhassett's Island; but that he knew 
much concerning Burr's expressions of trea- 
sonable intentions. 

The next witnesses called to prove treason- 
able designs were Commodore Truxton, Peter 
Taylor, Blannerhassett's gardener, and Colonel 
Morgan and his two sons. 

The prosecution now took up the testimony to 
establish the overt act and called to the stand 
Jacob Allbright, Peter Taylor, William Love, 
Maurice P. Belknap and Edmund B. Dana. 
These witnesses proved the assemblage of men, 
some thirty or more, on Blannerhassett's Is- 
land, December 10th, 1806, armed with rifles 
and pistols, the pretended purpose of which 
was to descend the Ohio Eiver to the City of 
New Orleans, and make it the base of opera- 
tions in an expedition to Mexico; but failed to 
prove the act of levying war. 

It was not proved that Burr was present on 
the Island when the assemblage of the men took 
place. 



THE TRIAL OF AARON BURR 77 

The only witness, who gave any direct testi- 
mony on the overt act sought to be proved was 
Allbright, and he was discredited on cross-ex- 
amination. He testified on the night of the 
flight from the Island that ' ' a man by the name 
of Tupper (meaning General Tupper), laid his 
hands upon Blannerhassett, and said: 'Your 
body is in my hands, in the name of the Com- 
monwealth. ' Some such words as that he men- 
tioned. When Tupper made that motion, 
there were seven or eight muskets leveled at 
him. Tupper looked about him and said ' Gen- 
tlemen, I hope you will not do the like.' One 
of the gentlemen who was nearest about two 
yards off said 'I'd as leave as not.' Tupper 
then changed his speech, and said he wished 
him to escape safe down the river, and wished 
him luck." 

At the conclusion of the evidence relating 
directly to the overt act charged in the indict- 
ment, counsel for the prosecution attempted to 
introduce collateral testimony of acts beyond 
the limits of the jurisdiction of the court; but 
Colonel Burr and his counsel strenuously ob- 
jected to such testimony as wholly irrelevant 



78 THE TRIAL OF AAEON BURR 

and inadmissible, and moved the court to ar- 
rest the evidence on the ground that the United 
States had failed to prove an overt act, con- 
stituting treason, under the Constitution of the 
United States. 

The argument on this motion, which was so 
vital to the further prosecution of the case com- 
menced on the 20th of August, and continued 
until the 29th of that month, and was ''doubt- 
less," says Parton, "the finest display of legal 
knowledge and ability of which the history of 
the American bar can boast." 

Mr. "Wickham opened the debate and was 
followed by Randolph, Wirt, Botts, McRae, 
Hay and Lee. Mr. Martin concluded. It fills 
one volume of Mr. Robertson's report of the 
case, and it would be vain to attempt in this 
brief review to give anything like a satisfac- 
tory account of it. Some of the reasons urged 
in support of the motion were: that Burr, not 
being present on Blannerhassett's Island, was 
merely an accessory, and not a principal; that 
if he was a principal he was a principal only in 
the second degree, where guilt is merely de- 
rivative, and that therefore no parole evidence 



THE TRIAL OF AARON BURR 79 

could be admitted against him, until a record 
was produced of the conviction of the offenders 
in the first degree; that the facts must be 
proved as laid in the indictment, and evidence 
proving the accused to have been absent at the 
time of the overt acts is inadmissible to sup- 
port an indictment charging him with the com- 
mission of that act; that no parole evidence 
could be given to connect the prisoner with the 
men assembled on Blannerhassett's Island, 
until an act of treason on the part of these men 
was proved ; and that the assemblage there was 
not an act of treason; that until the fact of a 
crime is proved no evidence should be heard 
respecting the guilty intentions of the accused. 

On Monday, August 31st the Chief Justice 
rendered his decision. He read it with great 
care and consumed three hours in doing so. 

' ' The question now to be decided, ' ' he began, 
*'has been argued in a manner worthy of its im- 
portance, and with an earnestness evincing the 
strong conviction felt by the counsel on each 
side that the law is with them. 

''A degree of eloquence seldom displaced on 
any occasion has embellished a solidity of argu- 



80 THE TRIAL OF AAEON SURE 

ment, and a depth of research by which the 
court has been greatly aided in forming the 
opinion it is about to deliver. 

''The testimony adduced on the part of the 
United States to prove the overt act laid in the 
indictment having shown, and the attorney for 
the United States having admitted, that the 
prisoner was not present when that act, what- 
ever may be its character, was committed, and 
there being no reason to doubt but that he was 
at a great distance and in a different state, it is 
objected to the testimony offered on the part of 
the United States, to connect him with those 
who committed the overt act, that such testi- 
mony is totally irrelevant and must therefore 
be rejected. 

"The arguments in support of this motion 
respect in part the merits of the case as it may 
be supposed to stand independent of the plead- 
ings, and in part as exhibited by the pleadings. 

''On the first division of the subject two 
points are made: 

"1st. That conformably to the constitution 
of the United States, no man can be convicted 



THE TRIAL OF AARON BURR 81 

of treason who was not present when the war 
was levied. 

"2d. That if this construction be erroneous, 
no testimony can be received to charge one man 
with the overt acts of others until those overt 
acts, as laid in the indictment, be proved to the 
satisfaction of the court. 

"The question which arises on the construc- 
tion of the constitution, in every point of view 
in which it can be contemplated, is of infinite 
moment to the people of this country and to 
their government, and requires the most tem- 
perate and the most deliberate consideration. 

"Treason against the United States shall 
consist only in levying war against them. ' ' 

The Chief Justice then proceeds to elabo- 
rately discuss an overt act of levying war. The 
opinion delivered by the Supreme Court in the 
case of Bollman and Swartout was declared by 
him to be not correctly understood; and that 
there must be, before an overt act of treason 
is completed, either the actual employment of 
force or a military assemblage of men, who 
are in a posture of war. 



82 THE TRIAL OF AARON BURR 

In conclusion the Chief Justice said: 
' ' The law of the case being thus far settled ; 
what ought to be the decision of the court on 
the present motion? Ought the court to sit 
and hear testimony which cannot affect the 
prisoner! or ought the court to arrest that 
testimony? On this question much has been 
said: much that may perhaps be ascribed to a 
misconception of the point really under con- 
sideration. The motion has been treated as a 
motion confessedly made to stop relevant testi- 
mony; and, in the course of the argument, it 
has been repeatedly stated, by those who op- 
pose the motion, that irrelevant testimony may 
and ought to be stopped. That this statement 
is perfectly correct is one of those fundamental 
principles in judicial proceedings which is ac- 
knowledged by all, and is founded in the absolute 
necessity of the thing. No person will contend 
that, in a civil or criminal case, either party is 
at liberty to introduce what testimony he 
pleases, legal or illegal, and to consume the 
whole term in details of facts unconnected with 
the particular case. Some tribunal then must 
decide on the admissibility of testimony. The 



THE TRIAL OF AARON BURR 83 

parties cannot constitute this tribunal ; for tliey 
do not agree. The jury cannot constitute it; 
for the question is whether they shall hear the 
testimony or not. Who then but the court can 
constitute it? It is of necessity the peculiar 
province of the court to judge of the admis- 
sibility of testimony. If the court admit im- 
proper or reject proper testimony, it is an 
error of judgment ; but it is an error committed 
in the direct exercise of their judicial func- 
tions. 

"The present indictment charges the pris- 
oner with levying war against the United 
States, and alleges an overt act of levying war. 
That overt act must be proved, according to 
the mandates of the constitution and of the act 
of congress, by two witnesses. It is not proved 
by a single witness. The presence of the ac- 
cused has been stated to be an essential com- 
ponent part of the overt act in this indictment, 
unless the common law principle respecting ac- 
cessories should render it unnecessary; and 
there is not only no witness who has proved 
his actual or legal presence, but the fact of his 
absence is not controverted. The counsel for 



84 THE TRIAL OF AAEON BURR 

tlie prosecution offer to give in evidence sub- 
sequent transactions at a different place and in 
a different state, in order to prove— what? the 
overt act laid in the indictments that the pris- 
oner was one of those who assembled at Blan- 
nerhassett's Island? No: that is not alleged. 
It is well known that such testimony is not com- 
petent to establish such a fact. The constitu- 
tion and law require that the fact should be 
established by two witnesses ; not by the estab- 
lishment of other facts from which the jury 
might reason to this fact. The testimony then 
is not relevant. If it can be introduced, it is 
only in the character of corroboratives or con- 
firmatory testimony, after the overt act has 
been proved by two witnesses in such manner 
that the question of fact ought to be left with 
the jury. The conclusion, that in this state of 
things no testimony can be admissible, is so 
inevitable that the counsel for the United 
States could not resist it. I do not understand 
them to deny, that, if the overt act be not 
proved by two witnesses so as to be submitted 
to the jury, all other testimony must be ir- 
relevant ; because no other testimony can prove 



THE TRIAL OF AARON BURR 85 

tlie act. Now, an assemblage on Blannerhas- 
sett's Island is proved by the requisite number 
of witnesses ; and the court might submit it to 
the jury whether that assemblage amounted to 
a levying of war; but the presence of the ac- 
cused at that assemblage being nowhere al- 
leged except in the indictment, the overt act is 
not proved by a single witness; and of con- 
sequence all other testimony must be irrele- 
vant. 

*'The only difference between this motion as 
made, and the one in the form which the coun- 
sel for the United States would admit to be 
regular, is this : it is now general for the rejec- 
tion of all testimony. It might be particular 
with respect to each witness as adduced. But 
can this be wished? or can it be deemed neces- 
sary? If enough be proved to show that the 
indictment cannot be supported, and that no 
testimony, unless it be of that description which 
the attorney for the United States declares 
himself not to possess, can be relevant, why 
should a question be taken on each witness? 

''Much has been said in the course of the 
argument on points on wliich the court feels 



86 THE TRIAL OF AAEON BURR 

no inclination to comment particularly; but 
which may, perhaps, not improperly, receive 
some notice. 

''That this court dares not usurp power is 
most true. 

''That this court dares not shrink from its 
duty is not less true. 

"No man is desirous of placing himself in a 
disagreeable situation. No man is desirous of 
becoming the peculiar subject of calumny. No 
man, might he let the bitter cup pkss from him 
without self reproach, would drain it to the 
bottom. But if he have no choice in the case, 
if there be no alternative presented to him but 
a dereliction of duty or the opprobrium of those 
who are denominated the world, he merits the 
contempt as well as the indignation of his coun- 
try who can hesitate which to embrace. 

' ' That gentlemen, in a case the most interest- 
ing, in the zeal with which they advocate par- 
ticular opinions, and under the conviction, in 
some measure produced by that zeal, should 
on each side press their arguments too far, 
should be impatient at any deliberation in the 
court, and should suspect or fear the operation 



THE TRIAL OF AARON BURR 87 

of motives to wliicli alone they can ascribe that 
deliberation, is perhaps a frailty incident to 
human nature; but if any conduct on the part 
of the court could warrant a sentiment that it 
would deviate to the one side or the other from 
the line prescribed by duty and by law, that 
conduct would be viewed by the judges them- 
selves with an eye of extreme severity, and 
would long be recollected with deep and se- 
rious regret. 

"The arguments on both sides have been 
intently and deliberately considered. Those 
which could not be noticed, since to notice every 
argument and authority would swell this opin- 
ion to a volume, have not been disregarded. 
The result of the whole is a conviction, as com- 
plete as the mind of the court is capable of re- 
ceiving on a complex subject, that the motion 
must prevail. 

"No testimony relative to the conduct or 
declarations of the prisoner elsewhere and sub- 
sequent to the transaction on Blannerhassett's 
Island can be admitted; because such testi- 
mony, being in its nature merely corroborative 
and incompetent to prove the overt act in itself, 



88 TPIE TRIAL OF AARON BURR 

is irrelevant until there be proof of the overt 
act by two witnesses. 

' ' This opinion does not comprehend the proof 
by two witnesses that the meeting on Blanner- 
hassett's Island was procured by the prisoner. 
On that point the court for the present with- 
holds its opinion for reasons which have been 
already assigned; and as it is understood from 
the statements made on the part of the prosecu- 
tion that no such testimony exists. If there be 
such let it be offered ; and the court will decide 
upon it. The jury have now heard the opinion 
of the court on the law of the case. They will 
apply that law to the facts, and will find a ver- 
dict of guilty or not guilty as their own con- 
sciences may direct." 

The next morning Mr. Hay, after counsel for 
the prosecution had given serious considera- 
tion to the opinion of the court, stated that he 
had neither argument nor evidence to offer to 
the jury. The jury then retired and after an 
absence of twenty-five minutes, reported to the 
court through their foreman. Colonel Car ring- 
ton, the following verdict endorsed on the in- 
dictment : 



THE TRIAL OF AAEON BURR 89 

''We of the jury find that Aaron Burr is not 
proved to be guilty under the indictment by 
any evidence submitted to us. We therefore 
find him not guilty." 

Colonel Burr and his counsel objected to en- 
tering this form of the verdict on the record. 
The court at length decided that the verdict 
should remain on the indictment as found by 
the jury, and that the record of the proceedings 
of the court should show simply a verdict of 
' ' not giiilty. ' ' The following day Burr was re- 
leased from prison on bail. 

The trial was now begun on the indictment 
for high misdemeanor against him, for having 
set on foot a military expedition against the 
territory of a foreign prince, to-wit, the 
Province of Mexico, which was within the em- 
pire of the King of Spain, who was at peace 
with the United States. The trial lasted until 
the latter part of October when Burr was ac- 
quitted. 

THE END 



SEP 4 1913 









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